Challenging Jurisdiction continued
By making an
"appearance" in response to a lawsuit a defendant is in effect submitting to the jurisdiction of the court and waiving any defects, if any, in personal jurisdiction.
In most states a defendant who wishes to challenge jurisdiction may do so by making a special appearance which is limited to the issue of jurisdiction.
(See, e.g., Cal.Code.Civ.Proc. § 418.10)
If he or she raises any other issues or claims he has made a general appearance and waives any defects in jurisdiction.
In federal courts no special appearance is necessary.
Jurisdiction may be challenged in a
FRCP 12(b) motion or included as a defense in the answer.
http://www.lexisnexis.com/lawschool/.../frcp02.htm#12
(Rule 12(b) also refers to FRCP 19 & 56)
FRCP 19
Joinder of Persons Needed for Just Adjudication
http://www.lexisnexis.com/lawschool/.../frcp02.htm#19
FRCP 56
Summary Judgement
http://www.lexisnexis.com/lawschool/.../frcp04.htm#56
How to Analyze a Personal Jurisdiction Issue
1. Does a statute (long-arm-statute) purport to authorize the exercise of personal jurisdiction?
If answer is "no" then end of analysis.
No personal jurisdiction can be asserted.
If the answer is "yes" then;
2. Does the statute go beyond the constitutional limits of due process set forth in International Shoe?
If "yes" then no personal jurisdiction.
If "no" then personal jurisdiction can be constitutionally asserted.
The Requirement of Notice
The existence of
personal jurisdiction depends upon a sufficient connection between the defendant and the forum state to make it fair to require defense of the action in the forum and the giving of reasonable notice to the defendant that an action has been brought.
If the defendant has not received proper notice, the court's power to adjudicate is imperfect.
Notice is usually given by serving the defendant with the "process" (e.g. a copy of the summons and the complaint) of the court.
Service of process is governed by FRCP 4.
FRCP 4
Summons
http://www.lexisnexis.com/lawschool/...b/frcp01.htm#4
The three methods of serving process are
1. personal service,
2. substituted service, and
3. constructive service.
Due process does not require that the defendant be served personally however, notice "reasonably certain" to reach the defendant is required.
I.e., Notice must be reasonably calculated under all the circumstances to apprise the defendant of the pendency of the action.
(Mullane v. Central Hanover Bank, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950).)
http://www.justia.us/us/339/306/case.html
How to analyze the issue of whether the notice given is valid
1. Is there a statute which authorizes this particular method of notice?
2. If so, does the statute meet the minimum constitutional requirements?
Attacking Notice
Defective service of process can be challenged by a
FRCP 12(b)(5) (defective service of process) motion to dismiss or the objection can be made in the answer.
Defective service of process goes to lack of notice.
Due process requires notice and an opportunity to be heard.
FRCP 12
http://www.lexisnexis.com/lawschool/.../frcp02.htm#12
Venue
If jurisdiction determines what state a suit can be brought in, venue determines what county or judicial district it may be brought in.
The purpose of venue rules is to limit the plaintiff's choice of forum in order to insure that the locality of the lawsuit has some logical relationship to the litigants or the subject matter of the dispute.
Venue, unlike subject matter jurisdiction, may be waived.
Stated another way, the distinction is this:
jurisdiction is the power to adjudicate,
venue relates to the place where judicial authority may be exercised and is intended for the convenience of the litigants.
(Wright, § 42) 28 U.S.C. § 1391 Summarized: In diversity actions, venue is proper in the district all defendants reside if all the defendants reside in the same state, or in the district in which the claim arose, or, alternatively, where any of the defendants may be found.
28 U.S.C. § 1391
Venue generally
http://www.law.cornell.edu/uscode/ht...1----000-.html
In federal question cases there is no plaintiff's venue.
The action may be brought only in the district where all defendants reside or the district in which the claim arose.
Transfer or Change of Venue and Forum Non Conveniens
This doctrine permits a court having jurisdiction over an action to refuse to exercise its jurisdiction when the litigation could be brought more appropriately in another forum.
(Friedenthal, § 2.17)
28 U.S.C. § 1406(a) provides that if a civil action is commenced in the wrong district or division, the court shall dismiss, but if it is in the interest of justice, the court may instead transfer the case to any district or division in which it could have been brought.
28 U.S.C. § 1406(a)
Cure or waiver of defects
http://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001404----000-.html
Transfer is preferable to dismissal since it avoids the necessity of commencing a new lawsuit.
Transfer can be ordered only if the court in which the action was brought has jurisdiction of the subject matter but it is not necessary that it have personal jurisdiction.
28 U.S.C. § 1404(a) states: For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."
28 U.S.C. § 1404(a) Change of venue
http://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001401----000-.html
Under the rule of "
forum non conveniens" a court can dismiss a suit even though it has both personal and subject matter jurisdiction and the venue is properly laid if there exists another forum so much more convenient for the parties and the courts that plaintiff's privilege of choosing his forum was outweighed.
The enactment of
1404(a) means that it is now only in rare instances where the alternative forum is a state court or the court of a foreign country may the federal court dismiss on grounds of forum non conveniens.
Procedure for Transfer under section 1404(a)
Motion for transfer may be made by any party, including the plaintiff.
Motion may be made at any time though delay in moving is a factor that will be considered in passing on the motion.
Once the motion is granted the transferor court loses all jurisdiction over the case.
If the transfer is on motion of the defendant, the transferee court must apply the law that would have been applied in the transferor court; a change in forum means only a change of courtrooms but not a change of law.
This means that in passing on the motion to transfer the court must consider the effect that retaining the law of the transferor state will have. (E.g., if law is unclear in transferor state that would militate against transfer.)
(Wright, § 44)